A blog dedicated to cases, insights, developments and best practices relating to the development and implementation of legal holds relating to audit, investigation and litigation in the United States; and trigger events that give rise to the duty to preserve evidence in the United States.

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EDD Update

October 11, 2009

Applying a Legal Hold to Digital Voicemail

From time to time we reference the hypothetical checklist that proactive organization's keep as a reference when developing the scope of a legal hold. The checklist, in theory, identifies all areas within an organization where electronically stored information ("ESI") exists to help implement a legal hold. As the scope of a legal hold is developed, the checklist is used to idenify relevant ESI that should be preserved.

As organizations turn to more and more electronic solutions for staying in touch it is important to make sure voicemail is on this list. If you think about your home answering machine, the use of a micro-cassettes to store messages went out of fashion long ago. The same holds true for just about every organization. Often voicemail is kept on a separate server in a closet right next to the phone system. How voicemail is stored on the voicemail system is a matter of choice and voicemail box data size. Many mailboxes for individual users are set to hold a set length of time for messages. Typically, when the mailbox is full the user needs to delete older messages to free up space in the mailbox to allow callers to be able to leave a message.

In some circumstances key custodians may have relevant voicemail messages. Organizations should take steps to preserve relevant voicemail messages that exist at the time the duty to preserve attaches. As more and more organizations intergrate voicemail with e-mail (where the user receives a .wav file with the message attached), care should be taken to ensure that relevant voicemail messages residing on the organization's computer system are being preserved.

Law.com recently published an excellent overview of the four types of voicemail systems in use today, from stand alone to fully integrated, known as unified messaging. To read E-Discovery Issues With Digital Voicemail, by Mark S. Sidoti and Paul E. Asfendis, as published in the New York Law Journal (Oct. 9, 2009), click on the name of the article or click here.